193 P. 380 | Idaho | 1920
Lead Opinion
The appellant was convicted of the crime of grand larceny of a certain cow, and appeals from the judgment.
It is contended by appellant that the court erred in permitting evidence to be introduced relative to an unrecorded brand upon the cow.
G. S., sec. 1920, provides: “All brands, earmarks and ear-tags shall be recorded with the department of agriculture. No evidence of ownership of stock by brand, earmark or eartag shall be permitted in any court of this state unless the brand or earmark or eartag be recorded as provided in this article.”
C. S., sec. 1927, provides: “In all suits at law or in equity, or in any criminal proceedings when the title or right of possession is involved, the brand, earmark or ear-tag of any animal shall be prima facie evidence that the animal belongs to the owner or owners of the brand, earmark or eartag, and that such owner is entitled to the possession of said animal at the time of the action: Provided, That such brand, earmark or eartag has been duly recorded as provided by law. Proof of the right of any person to use such brand, earmark or eartag shall be made by the copy of the record of same, certified to by the department of agriculture in accordance with the provisions of this article, or the original certificate issued to him by the department. Parol evidence shall be inadmissible to prove the ownership of a brand, earmark or eartag.”
The evidence complained of wras not introduced for the purpose of proving ownership by brand,-but as a matter of identification. There is nothing in the statute to prevent the introduction of evidence of an unrecorded brand for such purposes. (State v. Henderson, 72 Or. 201, 143 Pac. 627.)
-The respondent requested the court to instruct the jury as follows:
“You are instructed that if you find from the evidence that the defendant slaughtered the animal mentioned in the information, or caused or procured the same to be slaughtered, within three years preceding the date of filing the information in this case and failed to retain in his possession the hide taken off such animal, with the ears attached thereto, without any alterations of the marks on the same and without any disfiguration of the brand on the hide, for a period of thirty days after the animal was slaughtered or killed, but on the other hand did sell or dispose of the hide, or cause the same to be sold or disposed of within thirty days after the animal was slaughtered or killed, or did disfigure the brand on the slaughtered animal such act and omission on the part of the defendant is prima facie evidence of grand larceny.”
The trial judge noted that, this requested instruction was denied because the law was given in the words of the statute (C. S., sec. 1948), and instructed the jury as follows:
“Any person who at any time slaughters or kills any cattle must retain in his possession the hide taken off such cattle with the ears attached thereto without any alteration of the marks on the same, or any disfigurement of the brand, for the period of thirty days after such cattle have been slaughtered or killed. Proof of the failure of any person to comply with the foregoing provisions of this law shall be prima facie evidence of the commission, by the person so failing to comply therewith, of the crime of grand larceny as to the cattle so slaughtered or killed.”
No exception was taken to the instruction as given, but having been given substantially as requested by the state,
This instruction is attacked upon the ground that the law is unconstitutional.
In State v. Dunn, 13 Ida. 9, 88 Pac. 235, referring to the power of the legislature to enact laws governing the admission and effect of evidence in the courts, this language is used:
“The subject is one over which they [the legislature] have plenary power. They might declare that any particular class of evidence shall be inadmissible to establish any particular fact or issue. They may prescribe the modes of proof and the manner of making proof, and the effect such proof shall have in the courts.”
The power of the legislature in this respect, however, is subject to certain limitations. One of the limitations is stated as follows in the ease of McFarland v. American Sugar Refining Co., 241 U. S. 79, 36 Sup. Ct. 498, 60 L. ed. 899, see, also, Rose’s U. S. Notes:
“It is essential that there shall be some rational connection between the fact proved and the ultimate fact presumed, and that the inference of one fact from proof of another shall not be so unreasonable as to be a purely arbitrary mandate.” (See, also, Mobile J. & K. C. R. Co. v. Turnipseed, 219 U. S. 35, Ann. Cas. 1912A, 463, 31 Sup. Ct. 136, 55 L. ed. 78, 32 L. R. A., N. S., 226, see, also, Rose’s U. S. Notes.)
A case often cited.is Commonwealth v. Williams, 6 Gray (Mass.), 1. The principle underlying this case is expounded in In re Opinion of Justices, 208 Mass. 619, 94 N. E. 1044, 34 L. R. A., N. S., 771, as follows:
“There are many statutes in' which the legislature has enacted that the existence of a fact which ordinarily created a strong probability of the commission of an offense shall be prima facie evidence of guilt, and such statutes have been held constitutional.” (See People v. Cannon, 139 N. Y. 32, 36 Am. St. 668, 34 N. E. 759; United States v. Yee Fing, 222 Fed. 154; Robertson v. People, 20 Colo. 279,
So long as the evidence is of itself material and relevant, the statute may make it prima facie proof of the ultimate fact which it tends to establish, and may thus shift the burden of evidence.' Where, however, there is no connection or rational relationship between the fact proved and the ultimate fact to be presumed, .such a statute shifts the burden of proof, and in a criminal case deprives the defendant of the protection of his constitutional guaranties.
In the case of State v. Griffin, 154 N. C. 611, 70 S. E. 292, it is said:
“It is a part of the organic law of this state that there shall be no imprisonment for debt except in case of fraud. The bald fact that a person contracted a debt and promised to pay it in work, standing alone, does not justify a presumption of fraud in contracting the original debt, any more than it would if he had promised to pay it in money. It is beyond the power of the legislature to create such a rule of evidence and enforce it in the state’s own courts. It is but an arbitrary mandate, there being no rational connection, tending to prove fraud, between the fact proved and the ultimate fact presumed. Such an arbitrary rule of evidence takes away from the defendant his constitutional rights and interferes with his guaranteed equality before the law; and, as the supreme court of the United States says, ‘violates those fundamental rights and immutable principles of justice which are embraced within the conception of due process of law.’ (Bailey v. Alabama, 219 U. S. 219, 31 Sup. Ct. 145, 55 L. ed. 191, see, also, Rose’s U. S. Notes.) Mr. Justice Hughes, who delivered the opinion of the court, further says: ‘It is apparent that a constitutional prohibition cannot be transgressed indirectly by the .creation of a statutory presumption any more than it can be violated by direct enactment. The power to create
The act of a person in disposing of the hide of an animal within thirty days after it has been slaughtered by him is an act innocent in itself, except as made otherwise by statute% It may be necessary in the face of a falling market in order to prevent financial loss. It does not tend to prove that the animal slaughtered belonged to someone else, or that it had been stolen. If the statute had referred only to alteration of the brands upon the hide, or the defacement of other marks thereon, possibly there might have been some connection between the act and the fact to be presumed. But the statute goes further, and declares that the mere fact of failing to retain possession of a hide from a slaughtered animal for thirty days is prima facie proof of grand larceny. Under this statute one could be convicted without any evidence that any, cattle of any description had been stolen from any person. The instruction, if followed by the jury, relieved the state from the necessity of offering any evidence of the corpus delicti. It deprived the defendant of the benefit of any presumption of innocence, and required him to take the burden, not only of proving his own innocence, but perhaps of proving that the crime had not been committed.
The court properly instructed the jury in the language of C. .S., sec. 8957, as follows:
“A conviction cannot be had on the testimony of an accomplice, unless he is corroborated by other evidence, which in itself, and without the aid of the testimony of the accomplice, tends to connect the defendant with the commission of the offense; and the corroboration is not sufficient, if it merely showp the commission of the offense, or the circumstances thereof. '
In the present case the only evidence of the taking of the cow and the mutilation of the brand thereon, the killing of the animal and the disposal of the carcass, is found in the testimony of witnesses Elam and Faust. .Elam is an admitted accomplice. Under the circumstances of this case
The giving of the instruction was error.
Since the cause must be remanded for a new trial, we will refer to one other assignment of error.
It is claimed that the court erred in giving the following instruction:
“A principal in the commission of a crime, or an accessory before the fact, would be an accomplice, but an accessory after the fact would not be considered an accomplice. Therefore, the testimony of an accessory after the fact would not need to be corroborated, to justify a conviction, and could be considered as corroborating the testimony of an accomplice.”
In this connection it is claimed that the court erred in refusing to give the following instructions requested by appellant:
“You are instructed that an accomplice means anyone connected with the commission of a crime, either as principal offender or any accessory. It includes all persons who are connected with the crime or unlawful act or omission on their part transpiring on or before, at the time of, or after the commission of the crime.”
“An accomplice, as the term is used in our statutes and as meant in these instructions, is one who, at any state of
The latter instruction was modified somewhat and given by the court.
The action of the court complained of was not erroneous.
There is no statutory definition of an • accomplice in this state. In People v. Coffey, 161 Cal. 433, 119 Pac. 901, 39 L. R. A., N. S., 704, accomplices are defined as follows:
“All persons concerned in the commission of a crime, whether they directly commit the act constituting the offense, or aid and abet in its commission, or, not being present, have advised and encouraged its commission.”
In State v. Edlund, 81 Or. 614, 160 Pac. 534, the following definition is given:
“An accomplice is a responsible person whose wilful participation in the commission of a crime, when .that fact is established by competent evidence in a court of requisite jurisdiction, renders him liable to a conviction of the offense. ’ ’
An accessory after the fact is not an accomplice. He does not become connected with the crime until after its commission. (State v. Slothawer, 56 Mont. 230, 182 Pac. 270; State v. Cartwright (Iowa), 174 N. W. 586.)
The judgment is reversed and a new trial ordered.
Concurrence in Part
Concurring in Part and Dissenting in Part. As to all points covered in the majority opinion and not hereinafter dissented from, I concur.
From the record it appears that on the 9th of October, 1916, appellant and one Elam went to a field located on or near a stream known as Jenkins Creek and drove therefrom a cow alleged to belong to 'Williams. and Groom, partners. They took the cow to appellant’s ranch and kept her there until the 11th of October, 1916, at which time she was
Faust testified that the cow was branded with the figure “4” on the left hip; on the evening of October 11th, at Grimmett’s request he helped butcher her; he and Elam took three-quarters of the meat to town, put it in cold storage, and sold the hide to Hetrick.
Grimmett’s testimony upon examination was of a very unsatisfactory character.
I am unable to concur with the conclusion reached in the majority opinion that the instruction given on the court’s own motion is substantially as requested by the state, nor with the holding that it is deemed excepted to within the meaning of C. S., see. 9012. The rule is that instructions given on the court’s own motion are not deemed excepted to, but as to them, exceptions must be expressly saved in the record. (People v. Walter, 1 Ida. 386; People v. Biles, 2 Ida. 114, 6 Pac. 120; People v, O’Callaghan, 2 Ida. 156, 9 Pac. 414; State v. Suttles, 13 Ida. 88, 88 Pac. 238; State v. Peck, 14 Ida. 712, 95 Pac. 515; People v. Hart, 44 Cal. 598.) The instruction which the state requested was refused, and the only party who can complain as to it is the state. The instruction was not given, and appellant took no exception to the instruction which was given. If the
The majority opinion holds that G. S., sec. 1948, in the language of which the court’s instruction on its own motion was given, is unconstitutional, apparently on the ground that the evidence which it seeks to make prima facie proof of larceny, is not material and relevant, and further on the ground that ■
“Under this statute one could be convicted without any evidence that any cattle of any description had been stolen from any person. The instruction, if followed by the jury, relieved the state from the necessity of offering any evidence whatever of the corpus delicti.”
To my mind no such interpretation of the statute is possible. The statute does not say that the failure to retain the hide for thirty days after butchering an animal shall constitute grand larceny. It leaves the crime of grand larceny precisely as heretofore defined by our statutes, and it simply makes this fact prima fade evidence that the one so failing to retain the hide is guilty of grand larceny as to the cattle so slaughtered or killed.
In other words, where the state has properly charged the defendant with the crime of grand larceny and by competent evidence established the fact that an animal has been stolen, that the hide from the animal has been traced to the possession of the defendant, that the defendant has failed to retain the hide in his possession for a period of thirty days after the animal proven to have-Jbeen stolen was slaughtered, the failure of the defendant to so retain the hide in his posses-' sion is prima facie evidence of the commission by the de-' fendant of the crime of grand larceny, and shifts upon him the burden of evidence to explain the possession. The statute does not deprive the defendant of any constitutional right. He is only required, the facts being peculiarly within his own knowledge, to explain the possession of the hide taken from the animal proved to have been stolen. It is unnecessary to interpret the statute to mean that the failure to retain a hide for thirty days would be sufficient evidence upon
It is the imperative duty of this court to adopt the well-known rule of construction that if a statute is upon one construction in conflict with the constitution and upon another is not, the latter construction, if a fairly possible one, should be adopted, even though it seems the less natura] meaning of the terms employed. (In re Sing Lee, 54 Fed 334, 337.)
Moreover, as was held in the case of Hindman v. Oregon Short Line R. R. Co., 32 Ida. 133, 178 Pac. 837, it is an elementary principle of statutory construction that where a statute is capable of two interpretations, the one constitutional and the other unconstitutional, the court should adopt the construction which would uphold the validity of the act, for the reason that it is not to be presumed that the legislature was attempting to enact an unconstitutional law, but, on the other hand, the presumption should always obtain that the legislature was seeking to enact a law which would be constitutional, valid and enforceable.
The statute involved was passed expressly for the purpose of prohibiting the destruction of evidence of the theft of cattle, and can in no way be so construed as to result in injury to the rightful owners of animals slaughtered. The applicability of the statute involved can under no circumstances arise in the absence of a theft of cattle and proof of such theft.
This statute in nowise relieves the state of the burden which rests upon it to state in the information or indictment every essential element necessary to constitute the crime of grand larceny in order to state an offense under the laws of this state. Grand larceny is, and can be Committed only, of property that belongs to someone. In order to establish either by pleading or proof the crime of grand larceny, it must appear that the property belonged to some particular person; that it was taken from him without his consent and against his will, and with a felonious intent to steal it
“The material allegations of the information are: That the defendant took the animal described, in the information with the felonious intent to deprive the owner of said animal; that is, the taking must have been wrongful, and without right and without excuse, and with the intent of permanently depriving the owner of his property.
“2. That at the time of such taking said animal was the property of S. K. Williams and Willis Groom.
“3. That said property was taken in Washington county, state of Idaho, at or about the time set forth in the information. ” -
The statute in question does not even purport, from any rational interpretation that can be made of it, to change or alter the material facts which constitute the crime of grand larceny. The corpus delicti must be proved, and while the identification of the hide in a particular ease might be necessary in order to establish the identity of the animal owned by someone from whom it had been stolen, the fact that it had not been kept for thirty days as required by this statute does not establish the crime of grand larceny, but merely establishes a prima, facie ease that the person who butchered the animal and destroyed the hide was guilty of the crime of grand larceny otherwise established by the evidence. It does not deprive a defendant of any Constitutional right to prevent him from destroying the evidence of crime. An attempt to destroy the evidence of a crime which has been actually committed is some evidence that the one so destroy
Viewed in this light, the statute in question does no violence to any constitutional right of the defendant, and is well within the constitutional authority to pass laws and prescribe rules .of evidence vested in the legislature. (State v. Adams, 22 Ida. 485, 126 Pac. 401; In re Sing Lee, supra; Logan and Bryan v. Postal Tel. & Cable Co., 157 Fed. 570; Ng Choy Fong v. United States, 245 Fed. 305, 157 C. C. A. 497; State v. Beach, 147 Ind. 74, 46 N. E. 145, 36 L. R. A. 179; Griffin v. State, 142 Ga. 636, Ann. Cas. 1916C, 80, 83 S. E. 540, L. R. A. 1915C, 716, and note; People v. Johnson, 288 Ill. 442, 123 N. E. 543, 4 A. L. R. 1535, and note; State v. Cunningham, 25 Conn. 195; Faith v. State, 32 Tex. 373; Robertson v. People, 20 Colo. 279, 38 Pac. 326; Baltimore & O. S. W. R. R. Co. v. Tripp, 175 Ill. 251, 51 N. E. 833; Commonwealth v. Minor, 88 Ky. 422, 11 S. W. 472; Learned & Koontz v. Texas & P. Ry. Co., 128 La. 430, 54 So. 931; Ex parte Woodward, 181 Ala. 97, 61 So. 295; Dees v. State, 16 Ala. App. 97, 75 So. 645; 6 R. C. L. 465, see. 461; Caffee v. State, 11 Old. Cr. 485, 148 Pac. 680.)
There is no such thing as larceny until some particular property owned by some particular individual has been feloniously taken from him, and this statute does not seek to alter that situation. To my mind there is no reasonable justification for the statement above quoted from the majority opinion that one could be convicted without any evidence that any cattle of any description had been stolen from any person, nor that the instruction, if followed, would relieve the state from the burden of proving the corpus delicti.
Nor am I in accord with the statement in the majority opinion that “the jury could have found that Faust was an accomplice, and yet, relying upon and being misdirected by the instruction complained of, could have found appellant guilty.” No such situation could result, because the eourt
There is sufficient evidence in the record to prove the corpus delicti independent of the testimony of Elam or Faust. The evidence shows that Williams and Groom owned the cow; they never disposed of her, nor authorized anyone to dispose of her, and it shows the hide which was introduced as an exhibit came off this cow, which is sufficient to show she was stolen and butchered by somebody without any lawful authority, and establishes the corpus (delicti. In my opinion, the judgment should be affirmed.
Rehearing
ON REHEARING.
Counsel for respondent have insisted that the instruction given in the words of the statute and held error in the former opinion is so dissimilar to the instruction requested by the state, quoted in the opinion, that the court was wrong in holding that the instruction given was substantially the same as that requested.
We have given this matter serious consideration. The instruction requested by the state made no reference to the necessity of the state proving a felonious taking, which is one of the essential elements of the crime. The state requested the court to instruct the jury that if they should find that the defendant slaughtered the animal mentioned in
We are constrained to hold, therefore, that in substance the instruction given is the same as that requested by the state, and that it was correctly held to be deemed excepted to.
It was also urged with earnestness that the court erred in declaring that C. S., sec. 1948, is unconstitutional, and that the instruction based thereon is erroneous. Art. 1, sec‘. 13, of the constitution declares that no person shall be deprived of his life, liberty or property without due process of law. As applied to a criminal prosecution, due process of law requires that a defendant, after a plea of not guilty, shall not be put upon his defense or deprived, of his liberty until the state has produced evidence tending to prove that the crime charged has been committed and tending to connect the defendant with the commission thereof. “The presumption of innocence is an absolute protection against conviction and punishment, except either (1) on confession in open court, or (2) on proof which places guilt beyond a reasonable doubt.” (Cooley’s Const. Limitations, 7th ed., p. 439.) The legislature may not enact directly that a defendant shall be deprived of the presumption of his inno
We have concluded to adhere to the conclusion reached in the former opinion.